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Seyfarth Synopsis: 2017 saw an unprecedented number of website accessibility lawsuits filed in federal and state courts, and few courts willing to grant early motions to dismiss.

Plaintiffs were very busy in 2017 filing ADA Title III lawsuits alleging that public accommodations’ websites are not accessible to individuals with disabilities. Here is our brief recap of the 2017 website accessibility lawsuit numbers, major developments, and our thoughts for 2018.

In 2017, plaintiffs filed at least 814 federal lawsuits about allegedly inaccessible websites, including a number of putative class actions. We arrived at this number by searching for lawsuits with certain key terms and then manually reviewing the results to remove any cases that did not concern an allegedly inaccessible website. Our numbers are conservative, as it is very likely that not every website accessibility lawsuit’s description – upon which we based our search – contained our search terms. This caveat applies to all of the data set forth below.

Of the 814 federal cases, New York and Florida led the way with more than 335 and 325 cases, respectively. Surprisingly, California only had nine new website accessibility lawsuits in 2017, most likely because plaintiffs filed in state court. Federal courts in Arizona (6), Georgia (9), Illinois (10), Massachusetts (15), New Hampshire (2), Michigan (1), New Jersey (4), Ohio (8), Pennsylvania (58), Puerto Rico (1), Texas (7), and Virginia (24) also had their share of website accessibility lawsuits.

In California state courts, plaintiffs filed at least 115 website accessibility lawsuits in 2017 under the state’s non-discrimination laws. We compiled this data based on searches we performed for lawsuits by four blind plaintiffs represented by two California law firms.

In New York state courts, plaintiffs filed at least six website accessibility lawsuits in 2017. All were putative class actions.

Defendants in at least 13 federal website accessibility cases filed motions to dismiss or for summary judgment where there were no unusual circumstances like a prior court order or settlement agreement that obligated the defendant to make its website accessible. The courts denied all but two of those motions and let the cases proceed to discovery.

In one case where the defendant, Bang & Olfusen, won its motion to dismiss, the court noted that the plaintiff had failed to plead a nexus between the physical place of public accommodation and the website in question. In the other case, the court dismissed the claims made against Domino’s because requiring the defendant to comply with a set of web accessibility guidelines that are not yet law would violate due process principles. The Domino’s decision is on appeal and will be reviewed by the Ninth Circuit in 2018. Our post about these cases is here.

In the 11 cases where the federal judges refused to dismiss website accessibility claims and allowed the cases proceed to discovery, the defendants had unsuccessfully argued that the principles or due process and the doctrine of primary jurisdiction should be the basis for dismissal. One of our posts discussing some of these decisions is here.

In three decisions, the courts were open to the concept that providing telephonic access to the goods and services offered at the public accommodation may satisfy the ADA, but they refused to dismiss the cases at the outset on this basis.

The first trial in a website accessibility lawsuit took place in 2017. Florida U.S. District Judge Scola presided over this bench trial and concluded that grocer Winn Dixie had violated Title III of the ADA by having an inaccessible website. Judge Scola also found that the $250,000 cost to remediate Winn Dixie’s website was not an “undue burden” and ordered Winn Dixie to make its website conform with the Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA).

Three defendants were able to dismiss website access lawsuits early because they had already entered into consent decree or settlement agreements with previous plaintiffs which required them to make their websites conform to the WCAG 2.0 within a specified amount of time. That said, not all courts agree that a prior settlement — as opposed to a binding judgment or court order — can be the basis for a dismissal.

The Department of Justice’s (DOJ) rulemaking to create new website accessibility regulations is now officially dead, as we recently blogged. The lack of clear rules will lead to more litigation and inconsistent judicially-made law. In fact, it appears that the DOJ will not be issuing any new regulations under Title III of the ADA about any subject, according to the agency’s December 26 announcement in the Federal Register repealing all pending ADA Title III rulemakings.

What’s in store for 2018? If the Ninth Circuit upholds the Domino’s district court’s dismissal on due process grounds, the number of California website accessibility lawsuits in federal court may go down dramatically. Even if that occurs, we see no end to the website accessibility lawsuit surge elsewhere and expect that new plaintiffs’ firms will continue to enter the scene. While the current administration’s DOJ is not likely to push the website accessibility agenda, its inaction will not stop the lawsuits. Only an amendment to the ADA can do that, which we believe is highly unlikely. Thus, the best risk mitigation effort for covered entities is still to make their websites accessible as soon as possible, with the assistance of ADA Title III legal counsel experienced in website accessibility issues and reputable digital accessibility consultants.

Seyfarth Synopsis: Two Florida federal district court judges require websites to have a “nexus” to a physical location for coverage under Title III of the ADA, but a third judge requires more.

The Eleventh Circuit Court of Appeals (which includes Florida, Alabama, and Georgia) has yet to decide whether and to what extent Title III of the ADA applies to websites of public accommodations, but recent rulings from three different federal judges in Florida do provide insight on where the judges in that circuit may draw the lines.

Gil v. Winn Dixie. In December 2016, we wrote about the Gil v. Winn DixieStores case where a blind plaintiff alleged that Winn Dixie’s website violated Title III of the ADA because it was not accessible to him. Winn Dixie moved to dismiss the case, arguing that websites are not covered by Title III of the ADA because they are not physical places. Though not a party to the lawsuit, the Department of Justice filed a Statement of Interest supporting the plaintiff and expressing its view that “Title III applies to discrimination in the goods and services ‘of’ a place of public accommodation, rather than being limited to those goods and services provided ‘at’ or ‘in’ a place of public accommodation.” In response, Winn Dixie objected to the DOJ’s involvement and moved to strike the DOJ’s Statement of Interest.

District Court Judge Robert Scola recently denied Winn Dixie’s motion to dismiss the case and to strike the DOJ’s Statement of Interest. The case is now on its way to a bench trial — the first trial concerning an ADA Title III claim about a website, to our knowledge. In denying the motion to dismiss, Judge Scola agreed with the DOJ’s analysis that the law guarantees a plaintiff equal access to the services, privileges, and advantages “of” a public accommodation, not just those that are offered “at” a place of accommodation. Judge Scola noted that “Winn-Dixie’s website is heavily integrated with, and in many ways operates as a gateway to, Winn-Dixie’s physical store locations.” The court found that allegations concerning the website’s store locator feature and prescription ordering service for in-store pick up, if proven, could establish “nexus between Winn-Dixie’s website and its physical stores.”

Gomez v. J. Lindeberg USA, LLC. In this case, the defendant defaulted and District Court Judge Kathleen Williams had to determine if, on the basis of the facts alleged in the complaint, serial plaintiff Andrew Gomez was entitled to have a judgment entered in his favor. The complaint alleged that the plaintiff could not purchase clothing or search for store locations on the defendant retailer’s website because it was not accessible. Judge Williams concluded that the plaintiff had alleged sufficient facts establish a “nexus between the challenged service and the place of public accommodation,” and entered an injunction requiring the defendant to “undertake immediate remedial measures to make its website readily accessible and usable to people with visual disabilities.” The judge also ordered the defendant to pay plaintiff’s attorneys’ fees and costs.

Gomez v. Bang & Olufsen. District Court Judge Joan Lenard held in this case that the plaintiff had failed to state a claim under the ADA because he had not alleged that the website’s alleged inaccessibility impeded his full use and enjoyment of the brick-and-mortar store. The plaintiff had alleged that he could not shop for items on the website to have them delivered to his home. Judge Lenard held that the plaintiff failed to claim “an actual (not hypothetical) impediment to the use of Defendant’s retail location.”

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To summarize, two of the three Florida federal judges to have decided whether Title III of the ADA covers websites of public accommodations require a “nexus” between the website and a physical place of business where customers go (in alignment with the Ninth Circuit and precluding suits against web-only businesses), and one requires that the website’s lack of accessibility actually impede a plaintiff’s access to a physical place of business. All three judges agree that websites with no nexus to a physical place of public accommodation are not covered by the ADA.

Seyfarth Synopsis: The number of federal ADA Title III lawsuits continue to surge, fueled by new plaintiffs, new plaintiffs’ lawyers, and website accessibility claims.

Our 2016 lawsuit count is complete, and the results no less remarkable than prior years. In 2016, 6,601 ADA Title III lawsuits were filed in federal court — 1,812 more than in 2015. This 37 percent increase continues the upward trend in the number of filings, which we’ve been tracking since 2013. In 2015, there were 8 percent more Title III lawsuits filed than in 2014.

California and Florida continue to be hotbeds of litigation, with 2,468 and 1,663 lawsuits, respectively. New York, Arizona, and Texas hold distant third, fourth, and fifth positions. Here are the numbers for the top ten states:

The number of cases in Utah jumped from only one in 2015 to 124 in 2016 — due almost entirely to plaintiff Carolyn Ford who filed 105 of those suits. Other states that experienced significant increases include Arizona, California, Colorado, and Georgia. Alaska, North Dakota, South Dakota, and Wyoming are the only states that had no ADA Title III lawsuits at all filed in 2016.

What is driving these numbers? While historically there had been a few predictable plaintiffs and attorneys filing Title III lawsuits, over the past year we’ve seen quite a few newcomers filing (the most common) physical accessibility lawsuits, as well as a recent proliferation of plaintiffs and attorneys filing website accessibility lawsuits. There were more than 250 lawsuits filed in 2016 about allegedly inaccessible websites and/or mobile apps. This number does not include the hundreds, if not thousands, of demand letters plaintiffs sent to businesses asserting website accessibility claims.

Plaintiffs who filed more than a hundred lawsuits in 2016 were Theresa Brooke (274), Scott Johnson (258), Howard Cohan (251), Lional Dalton (184), Jon Deutsch (175), Advocates for Individuals with Disabilities LLC/Advocates for Individuals with Disabilities Foundation Incorporated, Advocates for American Disabled Individuals LLC (165), Chris Langer (163), Santiago Abreu (152), Damien Moseley (141), Patricia Kennedy (138), Doug Longhini (114), Andres Gomez (113), and Carolyn Ford (105). We expect to see fewer suits from Howard Cohan who was the subject of a news expose in late 2016 which showed videos here and here of him not appearing to be limited in his mobility. Mr. Cohan has filed many hundreds of suits over the years concerning alleged barriers that would affect people who are limited in their mobility.

In 2016, lawmakers in both the Senate and House proposed legislation called the ADA Education and Reform Act designed to, among other things, reduce the number of lawsuits filed by serial plaintiffs by requiring them to give businesses notice of the alleged violations and an opportunity to address them before filing suit. Those efforts stalled but may gain new momentum with a new administration that is sympathetic to the plight of small businesses and hostile to federal regulation. There were also state legislative efforts, which will no doubt continue in 2017.

We will, as always, continue to keep tracking lawsuit filings, legislative efforts, and other breaking developments and keep you up to date — as the Title III trend shows no signs of cooling down in 2017.

ABOUT SEYFARTH’S ADA TITLE III TEAM

Seyfarth’s ADA Title III team consists of attorneys with extensive experience in ADA Title III litigation located in many offices across the United States, including California where plaintiffs are most active. With additional litigators admitted to practice in virtually every jurisdiction in the country, we have the resources to defend our clients against lawsuits and investigations on a nationwide basis and provide consistent and efficient service in national engagements. We have successfully defended against or resolved hundreds of lawsuits brought under Title III of the ADA and applicable state laws.